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Virginia: Brain Injury – a Lawyer’s Appeal

Virginia: Brain Injury – a Lawyer’s Appeal

On May 16, 2011, Mr. Waterman filed Brief in Opposition to Petition and in Support of Assignments of Cross-Error of Appellee/Cross-Appellant, Mr. Gagnon, in Travis Burns v. Gregory Joseph Gagnon, et al, No. 110754 in the Virginia Supreme Court. The appeal is of his $6,100,000.00 jury verdict on August 27, 2011, in Circuit Court for Gloucester County, Virginia, for a brain injury victim of negligence, assault and battery.

In Burns v. Gagnon, Assistant Principal Burns assigns error on sovereign immunity, common law duty, statutory immunity, and de bene esse deposition admissibility. Cross-errors assigned by Mr. Gagnon in the brain injury appeal
are the trial court finding no gross negligence, as well as not submitting gross negligence to the jury.

On the duty issue in Burns v. Gagnon, Mr. Gagnon asserts that Va. S. Ct. R. 5:25 bars Assistant Principal Burns from complaining about jury instructions for the first time on appeal. At trial of the brain injury lawsuit, Assistant Principal Burns requested the negligence definition and finding instructions given, but not any other special “duty” instruction.

“It has been held that the failure to request an instruction at the trial bars any appeal on the point.” Friend, Law of Evidence in Virginia, §8-2 at 282 (6th ed. 2010 cumm supp.). Rose v. Jaques, 268 Va. 137, 158 (2004)(citing Va. S. Ct. R. 5:25 for not requesting instruction as failure to perfect in trial court and bar on appeal). “Accordingly, because [Defendant in Burns v. Gagnon] failed to pursue [any other instruction on duty to the brain injury student], we will not address the issue on appeal. Rule 5:25.” Oden v. Salch, 237 Va. 525, 531 (1989).